Just the other day, I complained about the fact that New York Federal district court overseeing the Google Books settlement apparently doesn’t plan to webcast the final public hearing that will take place on February 18 in this hugely important case about the future of digital books and copyright. Now I discover that the 11th Circuit Court of Appeals (which covers Florida, Georgia & Alabama) has issued a decision with even more far-reaching applications—allowing prosecutions for online obscenity distribution according to local “community standards” wherever a user might have downloaded the material—without even publishing the landmark decision!
Adam discussed this obscenity/localism issue in detail back in 2004. Eugene Volokh explains the substance of this decision:
United States v. Little concludes that Internet obscenity distribution prosecutions may rely on the community standard of the place in which the material was distributed — which means the government can try to download the material in the most restrictive community, and prosecute the distributor there.
If left to stand, this decision could essentially amount to a ban on hardcore pornography in the U.S.—with the definition of “obscenity” being left to local puritanical politicians in the country’s most socially traditionalist backwaters, subject only to some general restraint by the courts as to just how far the definition of “obscenity” can be pushed. Volokh continues: Continue reading →
The Federal district court handling the Authors Guild’s suit against Google over Google Books has scheduled a hearing on for February 18, 2010 in New York City (after several postponements). The parties, their supporters and the Department of Justice will all get to speak. Twenty-six outside groups will each get five minutes to speak about the deal—21 against and 5 in favor. (If the numbers seem off-balance, note that France is on the “con” side, and if the statist-stasist-centralist-protectionist French are against something tech-related, how bad an idea could it really be?)
Although the settlement is highly arcane, how this issue is resolved will probably do as much, for better or worse, to shape our digital future in the years to come as any tech policy issue currently under discussion. (I’d say only net neutrality, privacy regulation and media socialization would fall into the same tier of such fork-in-the-road decision-points.)
So of course this profoundly important public hearing is going to be livecasted, right? Unfortunately, I don’t think so. Continue reading →
Over on the Cato@Liberty blog, I’ve written a piece grading the “high-value data sets” agencies released a few weeks ago on Data.gov. (Agencies are supposed to have “/open” sites up by tomorrow.)
The results? Four As, four Bs, seven Cs, eighteen Ds, and eight Fs. Take a look!
As I’ve detailed in a WashingtonWatch.com blog post, the president called for earmark transparency in his state-of-the-union speech tonight. A fact sheet put out by the White House goes beyond the president’s words to call for “a comprehensive, bipartisan, state-of-the-art disclosure database that allows Americans to examine the details of every proposed earmark before a vote is taken—one that is fully searchable and otherwise user-friendly.”
This is very good news for transparency coming out of the state-of-the-union speech. And I’ll be working to make sure that the good practices that take root in the earmark area branch out to other areas as well.
Like Braden, I also filed comments on the FCC’s inquiry—written by CDT—about what, if anything, the FCC should say about online privacy in the National Broadband Plan Congress assigned the agency to write in the (so-called) “Recovery Act” last year. My comments are available here and are embedded below. Over 20 parties filed comments, available here. My argument in brief is as follows:
- To the extent consumer anxiety about online privacy is, as many claim, actually discouraging some Americans from fully utilizing broadband, the FCC could indeed recommend that Congress take action on online privacy—even though the FCC has no jurisdiction to regulate online privacy itself (beyond the limited CPNI rules it has already imposed on the communications services it licenses).
- But when Congress charged the FCC with drafting a plan for promoting broadband adoption, it set specific goals: The FCC may only recommend that Congress enact policies the agency concludes on the basis of real data will, on net, help achieve “affordability” and “maximum utilization” of broadband.
- The quality and quantity of online services depends on the ability of service providers to collect and use data about web browsing habits to analyze site use, personalize content, tailor advertising, and measure its effectiveness.
- So imposing additional regulations on the private sector comes with real costs to users and it’s far from clear that such regulations would, on the whole, promote broadband adoption.
- The Commission simply doesn’t have the data to evaluate this trade-off,, nor the time to collect it (as the FTC is trying to do) since the National Broadband Plan is due to Congress in a matter of weeks.
- But no such trade-offs exist with regards to government access to consumer data, which creates far more demonstrable and serious consumer harms. So the Commission should limit its legislative recommendations on privacy to endorsing enhanced limitations on government access, such as CDT has proposed.
- The Commission should be particularly wary of opinion polls as evidence of consumer expectations because they cannot tell us about the trade-offs inherent in the real world.
Continue reading →
AFF’s Doublethink has a nice story on “Open Source Democracy,” featuring TLF’s own Jerry Brito, founder of StimulusWatch.org.
Yours truly and WashingtonWatch.com get a little mention too. Media darling Jerry gets top billing because he’s so darn good looking. And yes, a very clunky early version of WashingtonWatch.com was launched in 2001. The story slightly overstates the capabilities of my project, but we’ve got improvements along those lines in the works.
Vivek Kundra, the Obama administration’s Chief Information Officer, may want to turn his attention to the The Financial Crisis Inquiry Commission, which begins its public hearings tomorrow. Here’s a screen shot of the Commission’s website as of 11:02am EST today:
I also grabbed a copy of the PDF-only Notice of Open Meeting, as the site, located at http://www.fcic.gov, is scheduled to launch in its full form later today. This is according to Ray Lehmann, Senior Editor with SNL Financial who spoke to a representative of the Commission this morning.
Launching a site for a Commission the day before it holds its first hearing is unacceptable. The “page and a PDF” placeholder above, which cannot be found using any of the major search engines, hardly makes up for this.
A good CIO should outline clear guidelines about how and when sites go live, especially in an administration that professes to have a strong commitment to making government more transparent. Either Kundra hasn’t established these protocols or the FCIC isn’t following them. Either way, Kundra needs to do his job and make sure this sort of slap-shod approach to making government information available on the web is no longer accepted.
Kundra was recently named 2009 CIO of the year by Information Week for his efforts to modernize the antiquated hulk that is the federal IT infrastructure. It would seem he still has much work to do.
In a letter to the editor of the Washington Post last week, former FTC Commissioner Thomas Leary responded to a Post article describing the FTC’s suit against Intel as a “major step for President Obama,” consistent with his campaign promise to “reinvigorate antitrust enforcement.” Leary responded indignantly to this characterization by declaring:
People seem to forget that the FTC is a bipartisan independent agency.
As a Republican FTC commissioner appointed by a Democratic president, I can vouch for the agency’s independence. During my service from 1999 to 2005 in the administrations of presidents Bill Clinton and George Bush, I never received a direct or indirect policy recommendation on a pending matter from anyone in the White House or from any of the people in Congress who had actively supported me.
Leary’s leeriness about political encroachment on the FTC illustrates the depth of abiding faith in independent regulatory agencies as standing truly apart from the day-to-day politics of Washington—especially when the might of the regulatory state is being wielded against a particular company in quasi-judicial prosecutions, such as antitrust enforcement actions. But if the independence of the FTC is this important, what about the independence of the Federal Communications Commission, with its broad jurisdiction over the media and tools of free speech?
Leary would probably be appalled at the politicization of the FCC in recent years. Bush’s second FCC chairman, Kevin Martin, was infamous for his political Machiavellianism and widely despised by the communications law bar. By contrast, when it became clear that Obama’s high-tech advisor Julius Genachowski would succeed Martin as FCC Chairman shortly before Obama’s inauguration, he received a chorus of applause from a wide range of philosophical perspectives, including from our former president at PFF, Ken Ferree:
Julius Genachowski is an outstanding choice to chair the Commission. He is knowledgeable, experienced, and presumably will have the ear of the most influential people within the Administration.
While no one would compare the eminently likable Genachowski to Martin, his relationship to the Obama administration appears unprecedented in its closeness, and one must ask whether that’s a good thing for the head of a supposedly “independent” regulatory agency or integrity of that agency’s decision-making. Continue reading →
I’m delighted to report that the White House’s web site, Whitehouse.gov, has begun posting the bills Congress sends down Pennsylvania Avenue so they can get a final public review. This actually began some time ago, but a link from the home page now directs visitors (and search engines) to the bills that await the president’s signature.
This is an important step toward fulfilling President Obama’s campaign promise to post the bills he receives from Congress online for five days before he signs them.
Take a look for yourself: On the Whitehouse.gov home page, a link at the bottom of the “Featured Legislation” column says “Comment on Pending Legislation.”
Currently, four bills are listed there, arranged in order by the dates they were posted. The final language isn’t posted at the link, and it takes a little sophistication to find the final version at the linked-to page on the Thomas system, but this is substantial progress.
Kudos to the White House for moving toward full implementation of President Obama’s Sunlight Before Signing promise!
The White House announces its open government plans today, live at 11:00 am Eastern, on Whitehouse.gov.
But what about the president’s promise to run his own White House more transparently? In a post on Cato@Liberty this morning, I look into a new development on the Sunlight Before Signing promise, which he has violated more than 100 times since taking office.
At some point earlier this year, the White House began posting links on Whitehouse.gov to bills that were heading its direction, a half-measure the White House told the New York Times it would take.
I failed to notice the existence of these pages, but I think it is forgivable error. There is no uniform structure to them, and there is no link I can discover on Whitehouse.gov that would bring anyone to them.
Based on my spot-checking, they haven’t been crawled by any search engine, so the only way a person could find them is by searching on Whitehouse.gov for phrases on the yet unseen pages or by searching the House or Senate bill numbers of bills that you know to look for because they have already passed into law.
This doesn’t fulfill the spirit of the Sunlight Before Signing pledge. It doesn’t give the public an opportunity to review final bills and comment before the president signs them. I doubt if a single one of the people who cheered when President Obama made his Sunlight Before Signing pledge has visited one of these pages and commented to the president as he told them they would be able to do.
There are further curiosities: The pages themselves are undated, but their “posted” dates, which appear in search results, are sometimes well beyond the date on which they became law. A Whitehouse.gov search for H.R. 2131, which became Public Law 111-70 on October 9th, shows that it was posted for comment on October 23rd.
Is the White House posting bills for review after they’ve become law, trying to make it look like they’re providing some measure of sunlight?
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Posted in: E-Government & Transparency, First Amendment, Free Speech & Online Child Safety, Sin on the 'Net 
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
